Stockton v. State

• Citation: 192 S.W. 236
• Decision Date: 07 February 1917
• Docket Number: (No. 4347.)
• Parties: STOCKTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 236

192 S.W. 236

STOCKTON v. STATE.

(No. 4347.)

Court of Criminal Appeals of Texas.

February 7, 1917.

Appeal from District Court, Hamilton County; J. H. Arnold, Judge.

Lonnie Stockton was convicted of aggravated assault, and he appeals. Affirmed.

S. R. Allen and A. R. Eidson, both of Hamilton, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was indicted September 4, 1915, for an assault with intent to rape Miss Leady Joiner on April 24, 1915. The indictment was returned at the first term of the court after the alleged assault. He was tried September 12, 1916, found guilty of an aggravated assault, and his punishment assessed at 45 days in jail and a fine of $200.

At the time of the assault, Miss Leady, the assaulted girl, was just 19 years old, and lived and had been raised in the country in the neighborhood near where the assault occurred. She was a country girl. Appellant at the time was a matured man, 28 years old, and had known her for 10 years or more; ever since she was a young child. They had never been sweethearts, and he had never before accompanied her anywhere nor in any way waited on her.

The assault occurred in appellant's buggy early in the night of April 24th. That day about noon, or soon after, they met, both attending a picnic in the community. For a while that evening at the picnic they sat together in an open hack near another couple who sat in a buggy. Appellant claimed that while they sat in said hack, he undertook to take some liberties with her person by pinching her breast. She swore that no such thing occurred. During the evening, somewhere on the picnic grounds, he made an engagement with her to take her that night to a party or dance in the same neighborhood. She informed him that she would spend the night with her friends, the Austeds, which was nearer to the party, or dance, they were to attend than her home. She was a welcome guest at the Austed's and was a frequent associate with the young ladies — three of them — of that family.

Mr. J. M. Austed and three of his young daughters at the time of the assault testified. So did Miss Leady and appellant. The Austeds differed as to the time appellant came there to take Miss Leady to the party, or dance. Some of them thought it was rather late. The witnesses also differed as to whether or not it was raining at the time or merely threatening to rain. Most of them testified that it was raining. As to the time, appellant himself swore: "It was dusky when I got to the house. It was not good dark when we left the house. * * * It was good dusk when we left the house." Mr. Austed testified that when appellant came to his house for said girl, he advised him that the weather was so bad that he didn't hardly see how he could go out in it. He told him he would get wet. Appellant replied: "I have got the buggy pretty well curtained up, and we will feel nearly as comfortable as if we were in the house." Mr. Austed offered no further objections to their going. Mrs. Bertha Harris, one of Mr. Austed's young daughters who was unmarried at the time, but married since, testified that when appellant reached her father's to take Miss Leady to the party, he asked the girl if they should go, and that she replied that she had just as well go as not, and he said it did not make any difference to him — that he would just as well go as not. She further testified: "The girl said she was not afraid of a storm, and she went ahead and got ready, and they left." She further swore on cross-examination: "They both seemed to want to go to the party." Miss Leady herself swore that when appellant so came after her, she asked him if he thought it was too bad to go, and he said, "we would go to the party." That when he same there for her, "there come up a cloud, and it was misting some." She provided herself with wraps. Young Mr. Austed offered her his overcoat, which she took and put around her to keep from getting wet. The appellant had his buggy top up and the side curtains on.

Miss Leady further testified that when they got about 100 yards from the house he put his arm upon the back of the buggy seat back of her. She tried to get him to take it down, and when he would not, she pushed it down a number of times. The substance and effect of the testimony further is: That he besought her to permit him to kiss her and to have sexual intercourse with her. She persistently refused. He then grabbed hold of her and attempted to raise her dress and put his hands on her person. That she was fighting him off all the time. That she tried a number of times to get out of the buggy, and he would not let her. That he threatened to choke her, saying: "I will choke you, you damned little devil you." In order to get to the party, they had to go out a gate from Mr. Austed's pasture. The Austeds and appellant and Miss Leady all testified as to the distance of this gate from Mr. Austed's house, making it from a little less than a quarter of a mile to about a half mile. She testified that when they got to this gate, she besought him to open it and drive on. He refused to do so, and stated that he would not go out of the gate at all unless she would have sexual intercourse with him. That he worried and scuffled with her, attempting to effect his purpose, until she was practically exhausted. That after this course of conduct on his part at the gate lasted for some considerable length of time, he finally turned the buggy and started back the way they had come towards Mr. Austed's and got about half way, he still attempting to force her to have intercourse with him. That she could not get loose from him. That in his attempt to force her, and his struggle with her, he tore the placket of her dress and also her sleeve, and bit her on the arm just above the elbow. That finally when she saw she could not get away from him otherwise she told him that she would consent if he would turn her loose, and to fix himself. That when he turned her loose to fix himself, she caught hold of the top of the buggy, swung herself out, and jumped over the front wheel. She swore:

"When I got away from Lonnie I was wrestled completely down, and was so nervous that I could not hardly get to the house. He called me a damn little devil a number of times, and he called me a son of a b____ once. He threatened to choke me till I submitted to him. * * * He had his hands everywhere (on her person) where he could get them, and was trying to raise my clothing all that time. He was doing his best to accomplish his purpose. When I got out of the buggy I went right straight to the house as fast as I could and never stopped."

Mr. J. M. Austed, his said daughter Mrs. Harris, Miss Jennie Austed, another one of his daughters, and Mrs. Ida Austed Overguard, another one of his daughters, who was unmarried when the assault occurred, but married when she testified, all testified to the statements of Miss Leady made to them immediately upon her reaching the house, telling them in substance what had occurred — the assault that appellant had committed upon her, her escape from him, and, in fact, substantially what appellant had done and said to her. They all swore that when she reached the house and made these statements to them, she was greatly excited, and some said mad also. Mrs. Harris said that she just bolted through the door and said: "Martin, get the gun, and I will go shoot that damn fool" (or "we" will do so). (Martin was Mrs. Harris' brother, a married man.) She further swore that Miss Leady was carrying her belt in her hand; that it had been broken or torn off of her; that her hair was down; that her clothing was wet and muddy. They all testified that she exhibited to them the wound on her arm and told them at the time that appellant had bitten her there. Appellant swore that when she jumped out of the buggy and started to the Austeds' he thought she was in earnest; "she acted like she was." That he did not follow her at all. "I stood there a minute or two and waited, * * *" and then went on to his home.

The witnesses differed as to the length of time which had elapsed from the time appellant started with Miss Leady, ostensibly to the party, until she thus returned, one of them saying that it was only a short time after they left until she thus returned; others that it was an hour or two; some that it was less than an hour. On this point appellant himself in his direct testimony swore: "I suppose it was about 30 minutes from the time the girl and I left Mr. Austed's until she jumped out of the buggy." On cross-examination he said that he had heard Mr. Austed and his girls testify that it was from an hour to two hours from the time they left until the girl returned to the Austeds', and said there was a mistake about the time, and he swore again: "I think it was about 30 minutes after I left before she jumped out of the buggy."

He testified in substance that soon after they left the Austeds' house that night, he and Miss Leady got to hugging and kissing. She positively denied all of this, but said after he had exhausted her in her struggles to protect herself, he did kiss her, but without her consent. He swore he did not drive to said gate at all with her, nor stop there; that he only went about half way to the gate and stopped, and that that was where she jumped out of the buggy and went back to the Austeds'. He swore that when he went for her that night, he did not intend to take her to the party, because he did not want to be seen in company with her; that he did not tell the girl that he did not intend to take her to the party, and that he supposed she thought he was; that she did not know that he did not intend to take her to the party; that he did not tell her he was not. He further swore that, while he was attempting to induce the girl to yield to him, "I put my hand over on her leg and she objected to that, * * * and every time I put my hand on her leg she...